Nanotechnology has been the subject of many “Emerging Claims” presentations at seminars over the past few years, but there are still many unknowns on the insurance coverage and litigation issues. One development likely to be in play in both areas is EPA’s recent final rule regarding nanotechnology reporting requirements under the recently amended (and strengthened) Toxic Substances Control Act (TSCA).

On the insurance issue, as the linked article points out: “[T]he new rule imposes reporting obligations on processors of nanoscale materials – including processors of nanoscale materials as a component of formulations or polymer matrices. This aspect of the rule has the potential to sweep in companies in the manufacturing sector that might not ordinarily consider themselves as being subject to regulation under TSCA.”

Therefore, companies must be aware of whether their production processes involve nanoscale materials in order to comply with the EPA regulations. Failure to comply could jeopardize coverage for claims based on injury or damage caused by nanoscale materials. Additionally, brokers and carriers need to be aware of the EPA requirements in order to properly analyze what coverage is needed, and, if claims arise, whether coverage exists.